Thursday, October 1, 2020

AFC Bournemouth consider legal action against Hawk-Eye following relegation

Last weekend, AFC Bournemouth were relegated from the Premier League after a stay of 5-years by a single point despite a final day heroic win against Everton to give them the slightest chance of survival. However, Aston Villa was able to obtain the point they needed against fellow strugglers West Ham United to ensure their survival and to seal Bournemouth’s fate.

During their 5-years, Bournemouth operated on one of the smallest, if not the smallest, budget of all Premier League clubs.

Deloitte’s Annual Football Review 2020 found that Bournemouth had the joint highest wages-to-turnover ration at 85% based on 2018/19 accounts. It has been reported that the club spent close to £111 million on player wages out of a £131 million total revenue and lost £32.4 million in the period. The greater concern to the club will be that during that period just over £115 million of their total revenue came directly from their participation in the Premier League. Therefore, it does not take a mathematician to work out how costly this relegation could be for the south coast club.

Financial Fair Play rules in the Championship mean that clubs must demonstrate that they have not lost more than £39 million over the past three seasons otherwise face the possibility of sanctions being imposed such as a heavy points deduction. This will be of concern to Bournemouth who may have to invest their parachute payments into paying off the clubs debts coupled with a need to sell key players who will be on wages too high to sustain in the Championship. Therefore, Bournemouth is unlikely to have much money to reinvest in their squad and rebuild.

AFC Bournemouth consider legal action
Bournemouth were relegated after Hawk-Eye failed to award Sheffield Utd goal

In other words, the impact of relegation could be dire and some in the media have already predicted that they could suffer the indignity of back-to-back relegations. Therefore, it comes as no surprise that the board at Bournemouth may take one last throw at the dice and take legal action against Hawk-Eye in order to compensate them against the huge losses they are likely to suffer.

The claim concerns a match which involved Sheffield United and Aston Villa on 17th June. It was in the first round of matches after the Premier League re-start following its suspension in March due to Covid-19. During that match, Sheffield United had a goal incorrectly ruled out even though Villa goalkeeper, Orjan Nyland, caught a free-kick and inadvertently stepped back over the goal line whilst still carrying the ball in his hands.

Bournemouth looking for justice

In the immediate aftermath, Hawk-Eye, the goal-line technology provider for the Premier League issued an apology and stated that all seven of the cameras focused on the goal had been “occluded” and that this was the first time in over 9,000 matches that such an error had occurred. Neither the on-pitch match official, Michael Oliver, nor the VAR manually overturned the decision.

Bournemouth’s argument is that had the goal been given Sheffield United would have won that match meaning that Aston Villa would have gained 0 points from that game rather than the 1-point they obtained due to the final result being 0-0. That single point deducted from Villa’s total would have meant that both clubs would have finished on the same points tally, but Bournemouth would have survived by virtue of goal difference meaning Villa would have been relegated instead.

Under the VAR protocols set out by the International Football Association Board, which govern the rules of football, a match is not invalidated because of a malfunction of goal-line technology or any incorrect decision involving VAR. The protocols would appear to be stacked against Bournemouth’s favour. In addition to this, so are previous decisions of the Court of Arbitration for Sport (CAS).
Most governing bodies allow for decisions to be referred to the CAS if there is a dispute.

Many cases that come before it involves commercial, doping, and disciplinary issues. However, the CAS has made it clear on several occasions that it will not review in-game decisions of the match officials unless bad faith or illegality can be proved against them. In refusing jurisdiction over such disputes, its aim is to preserve the autonomy of the match official and to uphold the outcome of the match come what may.

The leading case on this issue is CAS2004/A/704 Yang Tae Young v Korea Olympic Committee & International Gymnastics Federation where the panel refused to intervene in a dispute where the judging panel in the men’s all-round final failed to show correct scoring procedures during Yang’s performance. Even though a simple recalculation of the score could have been applied, which would have resulted in Yang receiving gold, CAS refused and laid down the principle of not interfering with field of play decisions except on proof of “arbitrariness, fraud or corruption in arriving at a decision”.

The CAS also took this opportunity to lay down some principles in relation to technology errors and stated that where an error is identified with the benefit of hindsight, whether admitted or not, cannot be a ground for reversing the result of a competition. Each sport must have within it a mechanism for utilising modern technology to ensure that a correct decision is made in the first place or for immediately subjecting a controversy to a review process.

The solution for error, either-way, lies within the framework of the sports own rules and does not licence judicial or arbitral interference.

The CAS does not operate on a system of binding precedent, therefore, there is no obligation for the CAS to follow its previous decisions. However, on this issue, they have been consistent. In the case of CAS OG 04/007 Bettina Hoy, time penalties imposed during a showjumping competition were reversed on appeal but reinstated by the CAS. The CAS took the opinion that what happens on the field, stays on the field.

Therefore, there is no authority in Bournemouth’s favour and the likelihood of them pursuing such a claim and being successful is almost nil. The harsh reality for Bournemouth is that the league table ultimately never lies and, unfortunately, they were not good enough over a 38-game season which included 10 consecutive away defeats.

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